United States v. Begay

310 F.Supp.3d 1318

UNITED STATES of America, Plaintiff,

v.Lyle Woody BEGAY, Defendant.

No. CR 14–0747 JB

United States District Court, D. New Mexico.

Filed February 23, 2018

Damon P. Martinez, United States Attorney, Kyle T. Nayback, Novaline Wilson, Michael D. Murphy, Assistant United States Attorneys, United States Attorney's Office, Albuquerque, New Mexico, Attorneys for the Plaintiff.

John F. Samore, Albuquerque, New Mexico, Attorney for the Defendant.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on: (i) the Defendant Lyle Woody Begay's Motion to Suppress Statement and Supportive Memorandum, filed July 22, 2014 (Doc. 28)("Suppression Motion"); and (ii) the United States' Motion to Exclude Expert Testimony from Suppression Hearing, filed August 16, 2017 (Doc. 128)("Exclusion Motion"). The Court held evidentiary hearings on August 17–18, 2017, and on November 20, 2017. The primary issues are: (i) whether Dr. Richard Leo, a Professor of Law and Psychology at the University of San Francisco School of Law, may offer expert testimony regarding police interrogation tactics; (ii) whether Dr. Leo may offer expert testimony regarding false confessions; (iii) whether Eric Lucero, a former New Mexico State Police officer and certified polygraph examiner, may offer expert testimony regarding polygraph examinations; (iv) whether Defendant Lyle Woody Begay's July 18, 2013, interview was a custodial interrogation; (v) whether Begay's statements during the July 18, 2013, interview were voluntary; (vi) whether Begay's July 19, 2013, interview was a custodial interrogation; (vii) whether Begay's statements during the July 19, 2013, interview were voluntary; (viii) whether Begay validly waived his Miranda ¹ rights during the July 30, 2013, interview; and (ix) whether Begay's statements during the July 30, 2013, interview were voluntary. The Court concludes that: (i) Dr. Leo may testify about police interrogation tactics generally, but not about the application of such techniques to this case; (ii) Dr. Leo may not testify regarding false confessions, because the United States Court of Appeals for the Tenth Circuit has indicated that such testimony is unreliable; (iii) the Court will exclude Lucero's testimony, because it is irrelevant; (iv) Begay's July 18, 2013, interview was not a custodial interrogation; (v) Begay's statements during the July 18, 2013, interview were voluntary; (vi) Begay's July 19, 2013, interview was not a custodial interrogation; (vii) Begay's statements during the July 19, 2013, interview were voluntary; (viii) Begay validly waived his Miranda rights during the July 30, 2013, interview; and (ix) Begay's statements during the July 30, 2013, interview were voluntary. Accordingly, the Court will deny the Suppression Motion and grant in part and deny in part the Exclusion Motion.

FACTUAL BACKGROUND

Rule 12(d) of the Federal Rules of Criminal Procedure requires the Court to state its essential findings on the record when deciding a motion that involves factual issues. See Fed. R. Crim. P. 12(d) ("When factual issues are involved in deciding a motion, the court must state its essential findings on the record."). The findings of fact in this Memorandum Opinion and Order shall serve as the Court's essential findings for rule 12(d) purposes. The Court makes these findings under the authority of rule 104(a) of the Federal Rules of Evidence, which requires a judge to decide preliminary questions relating to the admissibility of evidence, including the legality of a search or seizure and the voluntariness of an individual's confession or consent to a search. See United States v. Merritt, 695 F.2d 1263, 1269–70 (10th Cir. 1982). In deciding such preliminary questions, the other rules of evidence, except those with respect to privileges, do not bind the Court. See Fed. R. Evid. 104(a). Thus, the Court may consider hearsay in ruling on a motion to suppress. See United States v. Merritt, 695 F.2d at 1269 ("The purpose of the suppression hearing was, of course, to determine preliminarily the admissibility of certain evidence allegedly obtained in violation of defendant's rights under the Fourth and Fifth Amendments. In this type of hearing the judge had latitude to receive it, notwithstanding the hearsay rule."); United States v. Garcia, 324 Fed.Appx. 705, 708 (10th Cir. 2009) (unpublished)² ("We need not resolve whether Crawford [v. Washington, 541 U.S. 36 (2004) ]'s^{[3 ]} protection of an accused's Sixth Amendment confrontation right applies to suppression hearings, because even if we were to assume this protection does apply, we would conclude that the district court's error cannot be adjudged ‘plain.’ "); United States v. Ramirez, 388 Fed.Appx. 807, 810 (10th Cir. 2010) (unpublished)("It is beyond reasonable debate that Ramirez's counsel were not ineffective in failing to make a Confrontation Clause challenge to the use of the confidential informant. The Supreme Court has not yet indicated whether the Confrontation Clause applies to hearsay statements made in suppression hearings."). Cf. United States v. Hernandez, 778 F.Supp.2d 1211, 1226 (D.N.M. 2011) (Browning, J.)(concluding "that Crawford v. Washington does not apply to detention hearings").

1. The FBI Interviews.

1. On July 18, 2013, FBI Special Agent Matthew Schaeffer and Navajo Nation Criminal Investigator Darryl Boyd were investigating allegations that Begay had sexually abused a minor named Liberty Davis, Begay's niece. See Transcript of Recorded Interview of Lyle Woody Begay at 7:9–16 (Schaeffer, Begay); id. at 52:1–2 (Schaeffer); id. at 56:1–11 (Schaeffer, Begay)(taken July 18, 2013)("First FBI Tr.").

2. On July 18, 2013, Schaeffer and Boyd knocked on the door of Begay's home in Lukachukai, Arizona. See United States' Response in Opposition to Defendant's Motion to Suppress Statement at 1, filed August 11, 2014 (Doc. 35)("Suppression Response"); See Draft Transcript of Hearing at 164:25; 165:1 (taken August 17, 2017)(Schaeffer)("First Hearing Tr.").⁴

3. Schaeffer identified himself as an FBI agent with his credentials while standing at Begay's door. See First Hearing Tr. at 164:10–17 (Schaeffer, Wilson).

4. Schaeffer was dressed in plainclothes. See First Hearing Tr. at 164:10–17 (Schaeffer, Wilson).

5. Schaeffer's firearm was not visible. See First Hearing Tr. at 164:10–17 (Schaeffer, Wilson).

6. Schaeffer introduced Boyd as a tribal investigator. See Draft Transcript of Hearing at 22:2–8 (taken August 18, 2017)(Wilson, Boyd)("Second Hearing Tr.").

7. Boyd's badge and firearm were visible. See Second Hearing Tr. at 22:12–14 (Boyd).

8. Schaeffer asked Begay if he would be willing to speak to Schaeffer and Boyd, and Begay agreed to talk to Schaeffer and Boyd inside Schaeffer's Chevrolet Suburban. See Suppression Response at 1; First Hearing Tr. at 165:14–17 (Schaeffer, Wilson).

9. Begay entered the Suburban voluntarily. See Second Hearing Tr. at 24:3–9 (Boyd).

10. Schaeffer sat in the driver's seat of the Suburban, Boyd sat in the back seat, and Begay sat in the front passenger seat. See Suppression Response at 2; First Hearing Tr. at 165:18–25 (Schaeffer, Wilson); id. at 166:1–2 (Schaeffer, Wilson).

11. Schaeffer closed the Suburban's doors and windows, and told Begay that he closed them to use the Suburban's air conditioner. See First Hearing Tr. at 166:13–17 (Schaeffer).

12. The Suburban's doors were not locked. See Second Hearing Tr. at 24:11–15 (Boyd).

13. An M–4 carbine assault rifle was mounted on a rack inside the vehicle, but at no point during Begay's interview did Schaeffer touch the M–4. See First Hearing Tr. at 167:16–24 (Schaeffer, Wilson).

14. Begay did not see the M–4.⁵ See First Hearing Tr. at 210:11–23 (Schaeffer).

15. "[N]either SA Schaeffer nor CI Boyd brandished their weapon at any time, nor did they threaten Defendant with physical force." Suppression Response at 8.

16. Begay was not arrested or handcuffed during the interview. See First Hearing Tr. at 168:1–14 (Schaeffer, Wilson); Second Hearing Tr. at 24:3–9 (Boyd).

17. Schaeffer informed Begay that he was not under arrest, that if Begay wanted to stop the interview or to not answer a question, he could do those things, and that Begay was free to leave. See First Hearing Tr. at 168:1–14 (Schaeffer, Wilson).

18. Neither Schaeffer nor Boyd read Begay his Miranda ⁶ rights during the July 18, 2013 interview. See Second Hearing Tr. at 49:10–12 (Samore, Boyd).

19. Begay confirmed that the interview was voluntary. See First FBI Tr. at 3:19 (Begay).

20. Begay was articulate during the July 18, 2013, interview. See First Hearing Tr. at 168:24–25 (Schaeffer); Second Hearing Tr. at 25:16–17 (Boyd).

21. At no point in the interview did Begay say that he did not understand Schaeffer's questions. See First Hearing Tr. at 169:3–5 (Wilson, Schaeffer).

22. Begay never said that he wanted to leave the vehicle. See First Hearing Tr. at 175:15–18 (Wilson, Schaeffer).

23. Begay never asked for an attorney during the July 18, 2013, interview. See First Hearing Tr. at 176:9–11 (Wilson, Schaeffer).

24. During the interview, Begay admitted to or implied that he engaged in sexual acts with the alleged victim, Davis. See First FBI Tr. at 58:17–25 (Begay, Schaeffer); id. at 77:21–25 (Schaeffer, Begay); id. at 78:1–2 (Begay).

25. The July 18, 2013, interview lasted approximately three hours. See First FBI Tr. at 3:4 (Schaeffer); id. at 135:19–20 (Schaeffer).

26. The next day, July 19, 2013, Begay, unexpectedly and without an appointment, traveled to the FBI office in Gallup, New Mexico to speak with Schaeffer. See Suppression Response at 3; Transcript of Recorded Interview of Lyle Woody Begay at 3:1–8 (taken July 19, 2013)(Schaeffer)("Second FBI Tr.").

27. Schaeffer and Begay spoke by themselves. See Second FBI Tr. at 3:4–8 (Schaeffer).

28. Schaeffer informed Begay that "he didn't have to answer questions that he didn't want to," that he was not under arrest, and that Begay...